Iacurci v. Sax ( 2014 )

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IACURCI v. SAX—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. I
disagree with the majority’s conclusion that the Appel-
late Court properly affirmed the trial court’s award of
summary judgment in favor of the defendants, Larry
Sax, and Cohen, Burger, Schwartz & Sax, LLC. The
majority concludes that ‘‘the Appellate Court properly
engaged in a plenary review of the record to determine
whether the undisputed factual evidence supported the
trial court’s conclusion that a fiduciary relationship
existed between the parties.’’ The majority further con-
cludes that ‘‘[o]n the facts of this case, even when the
evidence is viewed in a light that is most favorable to
[the plaintiff, Arthur Iacurci], we conclude that, as a
matter of law, the defendants did not owe him a fidu-
ciary duty.’’ I respectfully disagree.
In my view, taking the evidence in the light most
favorable to the nonmoving party, in the opposition to
the motion for summary judgment the plaintiff pro-
duced sufficient evidence to demonstrate the existence
of genuine questions of material fact regarding whether
a fiduciary relationship existed between the parties.
The defendants did not submit any evidence to contra-
dict the affidavits submitted by the plaintiff. Further, I
disagree with the majority’s position to the extent that
it indicates that the plaintiff had the burden of establish-
ing the existence of a fiduciary relationship. Rather, in
my view, our case law is clear that it is the party moving
for summary judgment that must demonstrate to the
satisfaction of the court that there are no issues of
material fact before the court may render summary
judgment. While the plaintiff may ultimately have the
burden of proof if the case should go to trial, it remains
the defendants’ burden on summary judgment to show
the absence of material fact. The affidavits of the plain-
tiff, unopposed by the defendants, support the existence
of a genuine issue of material fact in this case. Further,
in my view, the majority opinion does not give effect
to our jurisprudence that states that ‘‘[i]n deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party.’’ (Internal quotation marks omitted.) DiPietro
v. Farmington Sports Arena, LLC, 306 Conn. 107, 116,
49 A.3d 951 (2012). Therefore, I respectfully dissent.
Pursuant to Practice Book § 17-49, the ‘‘party seeking
summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact.’’ (Internal quotation marks omit-
ted.) Id. ‘‘[A] party opposing [a motion for] summary
judgment must substantiate its adverse claim by show-
ing that there is a genuine issue of material fact together
with evidence disclosing the existence of such an
issue.’’ (Internal quotation marks omitted.) Home Ins.
Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202,
663 A.2d 1001 (1995). ‘‘On a motion by the defendant
for summary judgment, the burden is on the defendant
to negate each claim as framed by the complaint . . . .’’
49 C.J.S. 392, Judgments § 327 (2009). It necessarily
follows that it is only ‘‘[o]nce the defendant’s burden
in establishing his or her entitlement to summary judg-
ment is met [that] the burden shifts to the plaintiff to
show that a genuine issue of fact exists justifying a
trial.’’ Id.
In this case, the plaintiff submitted two affidavits
in opposition to the defendants’ motion for summary
judgment. The plaintiff submitted an affidavit in which
he indicated that the defendants never disclosed to him
that ‘‘they had changed my tax reporting status for
reporting my investment income for tax purposes from
2003 through 2005. I trusted them, I had confidence in
them, I knew that, in tax matters, their knowledge,
skill and expertise was clearly superior to mine, and I
believed, at all times, that, in preparing my tax returns,
they were proceeding in my best interests.’’ Further, the
plaintiff also submitted the affidavit of Robert Walsh, a
financial planner duly licensed in the state of Connecti-
cut who was in the business of providing clients advice
in financial and tax matters. Walsh averred in his affida-
vit as follows: ‘‘Based upon my knowledge and experi-
ence as a tax preparer, I can state that, in my
professional opinion, given the lengthy time period of
the relationship between [the plaintiff] and Sax, and
the nature and scope of the tax services [the defendants]
rendered, [the defendants] had a special, fiduciary rela-
tionship with [the plaintiff], and a fiduciary duty and
responsibility, as [the plaintiff’s] tax advisers and tax
preparers, to disclose to [the plaintiff] any decision on
their part to materially change his tax status for
reporting Florida real estate investment income.’’ The
defendants never filed an affidavit which contested
these statements. Whether a fiduciary relationship
existed between the parties was central to the plaintiff’s
claims. Once the plaintiff established facts supporting
a finding of a fiduciary relationship, it was incumbent
upon the defendants to show that no fiduciary relation-
ship existed in order to obtain summary judgment. In
the absence of an affidavit to the contrary, in my view,
the Appellate Court should have reversed the judgment
of the trial court on the basis that a genuine issue of
material fact existed that needed to be heard by the jury.
I agree with the majority that this court has recog-
nized that ‘‘some actors are per se fiduciaries by nature
of the functions they perform. These include ‘agents,
partners, lawyers, directors, trustees, executors, receiv-
ers, bailees and guardians.’ . . . Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, [281 Conn. 84,
108–109, 912 A.2d 1019 (2007)]. Beyond these per se
categories, however, a flexible approach determines
the existence of a fiduciary duty, which allows the law
to adapt to evolving situations wherein recognizing a
fiduciary duty might be appropriate. Id. This court has
instructed that, ‘[a] fiduciary or confidential relation-
ship is characterized by a unique degree of trust and
confidence between the parties, one of whom has supe-
rior knowledge, skill or expertise and is under a duty
to represent the interests of the other. . . . The supe-
rior position of the fiduciary or dominant party affords
him great opportunity for abuse of the confidence
reposed in him.’ . . . Id., 108. With these principles in
mind, ‘we have recognized that not all business relation-
ships implicate the duty of a fiduciary.’ Hi-Ho Tower,
Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d
1268 (2000).’’ Further, as Judge Lavine aptly noted in
his dissent in the Appellate Court; see Iacurci v. Sax,
139 Conn. App. 386, 426, 57 A.3d 736 (2012); this court
has previously stated that, ‘‘[r]ather than attempt to
define a fiduciary relationship in precise detail and in
such a manner to exclude new situations, we have
instead chosen to leave the bars down for situations in
which there is a justifiable trust confided on one side
and a resulting superiority and influence on the other.’’
(Internal quotation marks omitted.) Dunham v. Dun-
ham, 204 Conn. 303, 320, 528 A.2d 1123 (1987), over-
ruled in part on other grounds by Santopietro v. New
Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).
In Dunham, this court concluded that on the record,
‘‘which indicates that the defendant is the older brother
of the plaintiff, and that the plaintiff continually placed
his trust and confidence in the defendant for both legal
and nonlegal advice, we are convinced that the court
properly submitted this issue to the jury.’’ Id., 321.
Likewise, in the present case, on the basis of the
affidavits submitted in opposition to the motion for
summary judgment, I would conclude that the issue of
whether a fiduciary relationship existed between the
parties should have gone to the jury. In the present
case, the defendants prepared the plaintiff’s taxes for
many years and the plaintiff submitted an affidavit to
the effect that he had trust and confidence in the
defendants.
Indeed, in a case presented to the jury, if the plaintiff
establishes the existence of a fiduciary relationship, it
becomes the defendants’ ‘‘burden to disprove that it
breached its fiduciary duty, hence disproving that it
fraudulently concealed [the] plaintiff’s cause of action.’’
Martinelli v. Bridgeport Roman Catholic Diocesan
Corp., 10 F. Supp. 2d 138, 145 (D. Conn. 1998), aff’d in
part, vacated and remanded in part, 196 F.3d 409 (2d
Cir. 1999). Therefore, if a fiduciary relationship were
established, a relationship which the Appellate Court
concluded did not exist, it would have been incumbent
upon the defendants to disprove that it fraudulently
concealed the plaintiff’s cause of action, thus negating
the statute of limitations defense. The Appellate Court,
however, placed the burden on the plaintiff to establish
fraudulent concealment since it concluded that a fidu-
ciary relationship did not exist.
As Judge Lavine reasoned in his dissent to the major-
ity opinion of the Appellate Court, ‘‘[t]he determination
of a fiduciary relationship is fact specific and depends
on the circumstances present in each case. . . .
Whether there was a fiduciary relationship between
the parties in this action is a question of fact to be
determined by the trier of fact in light of all [the] circum-
stances present.’’ (Citations omitted.) Iacurci v. Sax,
supra, 139 Conn. App. 426. Like Judge Lavine, I would
conclude that our jurisprudence suggests that we
decide the existence or absence of a fiduciary relation-
ship based upon all of the facts of the case. Indeed,
only by examining all of the facts of the particular case
can we implement what the majority refers to as a
‘‘flexible approach [that] determines the existence of a
fiduciary duty . . . .’’ The evidence adduced at the
summary judgment stage in the present case consti-
tutes, in my view, too vague a sketch upon which to
make such a determination.
I note that the majority relies upon Biller Associates
v. Peterken, 269 Conn. 716, 849 A.2d 847 (2004), for the
proposition that an appellate court is not required to
defer to the trial court’s determination of whether a
fiduciary relationship exists. I respectfully disagree that
Biller Associates supports the majority’s conclusion in
the present case. Biller Associates involved an examina-
tion of the facts adduced at trial to determine if a fidu-
ciary relationship existed. Although this court held that
a fiduciary relationship did not exist in Biller Associates
v. Peterken, supra, 725, the reasoning is instructive given
the facts of the present case. ‘‘In the seminal cases
in which this court has recognized the existence of
a fiduciary relationship, the fiduciary was either in a
dominant position, thereby creating a relationship of
dependency, or was under a specific duty to act for the
benefit of another. . . . In the cases in which this court
has, as a matter of law, refused to recognize a fiduciary
relationship, the parties were either dealing at arm’s
length, thereby lacking a relationship of dominance and
dependence, or the parties were not engaged in a rela-
tionship of special trust and confidence.’’ (Internal quo-
tation marks omitted.) Id., 723–24.
The affidavits in the present case establish that the
parties were not dealing in an arm’s-length transaction.
To the contrary, the affidavits establish that the plaintiff
and the defendants had a lengthy relationship in which
the plaintiff relied on the defendants for tax advice and
preparation. I would conclude that a question of fact
exists as to whether there was a relationship of special
trust and confidence. The affidavits established that, at
the very least, there was a genuine issue of material
fact as to whether a relationship of special trust and
confidence existed. The existence of a genuine issue
of material fact is particularly accentuated by the fact
that the defendants did not present any affidavits to
the contrary.
The majority opinion provides that ‘‘[t]o the extent
that courts in other jurisdictions have addressed the
present question, they have concluded that a fiduciary
relationship does not exist when a client relationship
is limited to the preparation of tax returns. See Sorenson
v. H & R Block, Inc., 107 Fed. Appx. 227, 230–31 (1st
Cir. 2004) . . . .’’ (Citations omitted.) Further, the
majority states that ‘‘[i]n contrast, courts have con-
cluded that the relationship between a tax return pre-
parer and a client is fiduciary in nature when a
heightened risk of abuse of trust or confidence exists,
such as when the tax return preparer or accountant
acts as an investment advisor or manages the client’s
funds. See Burdett v. Miller, 957 F.2d 1375, 1381–82
(7th Cir. 1992) . . . .’’ (Citations omitted.) The majority
suggests that other jurisdictions are in accord with its
opinion, and it can not find any cases to the contrary.
I respectfully disagree.
In Basile v. H & R Block, Inc., 777 A.2d 95 (Pa. Super.
2001), the Superior Court of Pennsylvania reversed the
trial court’s order granting summary judgment in favor
of the defendants on facts similar to those in the present
case. In Basile, the plaintiffs retained H & R Block, Inc.
(Block), to prepare their federal and state income tax
returns and obtain tax refunds from the Internal Reve-
nue Service from 1990 through 1993. Id., 98. Subse-
quently, the plaintiffs filed a class action alleging that
during the tax preparation Block enlisted their partici-
pation in its ‘‘ ‘Paid Refund’ ’’ service and did not dis-
close that their ‘‘ ‘rapid refunds’ ’’ were, in fact, short-
term high interest loans secured by the taxpayers’ pend-
ing refunds. Id. The trial court had granted summary
judgment based on the conclusion that the plaintiffs
failed to adduce sufficient evidence to demonstrate a
confidential relationship between themselves and
Block. Id., 99. The court in Basile relied on the fact
that the Pennsylvania Supreme Court has acknowl-
edged that ‘‘[t]he concept of a confidential relationship
cannot be reduced to a catalogue of specific circum-
stances, invariably falling to the left or right of a defini-
tional line. . . . The [c]ourt has recognized,
nonetheless, that [t]he essence of such a relationship
is trust and reliance on one side, and a corresponding
opportunity to abuse that trust for personal gain on the
other. . . . Accordingly, [a confidential relationship]
appears when the circumstances make it certain the
parties do not deal on equal terms, but, on the one side
there is an overmastering influence, or, on the other,
weakness, dependence or trust, justifiably reposed
. . . . Contrary to the trial court’s determination in this
case, our law does not require both over[mastering]
influence and . . . weakness, dependence or trust.
. . . Indeed, both elements need not appear together
as in both an unfair advantage is possible.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 101.
The court in Basile further noted that ‘‘[i]f parties
are engaged in a confidential relationship the apparent
disparity in their positions serves as the foundation for
the law’s expectation of conduct between the parties
and the concomitant obligations of the superior party.
[T]he party in whom the trust and confidence are
reposed must act with scrupulous fairness and good
faith in his dealings with the other and refrain from
using his position to the other’s detriment and his own
advantage. . . . As a consequence of the superior par-
ty’s heightened state of duty normal arm’s length bar-
gaining is not assumed. . . . This is so because the
presence of a confidential relationship negates the
assumption that each party is acting in his own best
interest.’’ (Citations omitted; internal quotation marks
omitted) Id. The court in Basile also explained that
‘‘[t]he [Pennsylvania] Supreme Court has determined
that a confidential relationship and the resulting fidu-
ciary duty may attach wherever one occupies toward
another such a position of advisor or counsellor as
reasonably to inspire confidence that he will act in good
faith for the other’s interest.’’ (Internal quotation marks
omitted.) Id., 101–102.
Applying that framework to the facts before it, the
court in Basile then explained that ‘‘[u]pon application
of the proper standard of [a] confidential relationship
. . . we conclude that the evidence adduced in this
case is sufficient to make a prima facie showing that
the [p]laintiffs and Block engaged in a confidential rela-
tionship. As a starting point, the evidence suggests that
Block actively sought customer trust in . . . Block as
a corporate entity and in all of the services Block
offered.’’ (Citations omitted.) Id., 103. ‘‘Further evi-
dence tends to demonstrate that Block cultivated cus-
tomer trust through an extended and extensive media
ad campaign, the focal point of which was Block’s
expertise in tax matters and the trustworthy character
of Block’s services.’’ Id., 104. ‘‘Additional evidence, in
the form of Block’s ‘confidential’ marketing data sug-
gests that many of Block’s customers entered their rela-
tionships with Block in a position of pronounced
economic and intellectual weakness.’’ Id. ‘‘Nonetheless,
our holding is narrow. We do not conclude that the
relationship of a tax consultant to his client is confiden-
tial per se, nor do we conclude that the parties here
were engaged in such a relationship as a matter of law.
We conclude only that the evidence before the trial
court on summary judgment was sufficient to establish,
prima facie, the elements of a confidential relationship
between the parties in this case. If, upon remand, the
[fact finder] accepts, as truthful, evidence adduced
tending to demonstrate a confidential relationship,
Block will be bound by a corresponding fiduciary duty
as a matter of law.’’ Id., 107.
Thus, in Basile, the court recognized the possibility
of a confidential relationship existing when the tax pre-
parer only prepared the taxes and processed the tax
refund. I agree with this approach. Accordingly, in the
present case, I would not conclude that the evidence
is sufficient to determine that a fiduciary relationship
existed in this case. Rather, I would conclude that the
evidence is sufficient to establish that a genuine issue
of material fact exists regarding whether a fiduciary
relationship existed between the plaintiff and the defen-
dants. Thus, I would conclude that the evidence before
the trial court on summary judgment was sufficient
to establish, prima facie, the elements of a fiduciary
relationship between the parties in this case.
Further, in Green v. H & R Block, Inc., 355 Md. 488,
495, 735 A.2d 1039 (1999), involving a similar ‘‘rapid
refund’’ scenario, the Court of Appeals of Maryland
reversed a trial court decision granting Block’s motion
to dismiss on the basis that sufficient facts had been
alleged to warrant a factual determination regarding
the existence of a principal-agent relationship that gives
rise to a fiduciary duty to disclose any conflict of inter-
est. This action also involved tax preparation and the
processing of refunds. The court in Green opined that
‘‘we conclude that it would be reasonable to infer that
. . . Block’s customers retain control over . . .
Block’s ultimate actions and representations with
respect to filing the tax return and applying for [a rapid
refund]. Viewed most favorably to [the plaintiff],
[Block’s] relationship with its customers is analogous
to other principal-agent relationships, such as between
an attorney and his or her client. . . . An attorney who,
for example, serves as his or her client’s representative
in negotiations to settle a lawsuit is generally not subject
to the client’s control over the best strategy to use in
order to arrive at a good settlement, but the client con-
trols the final decision as to whether to settle or not.
The client/principal may have little knowledge of the
law or negotiating strategies and so trusts the attorney/
agent to further his or her interests in the settlement
negotiations.’’ (Citations omitted.) Id., 511. The court
in Green further concluded that ‘‘[s]imilar to the client
who is represented by an attorney in settlement negotia-
tions, [Block’s customers] may be unknowledgeable in
tax and financial matters, trusting . . . Block to further
his or her interests. Like the attorney representing a
client in settlement negotiations, [Block] undertakes to
file customer tax returns with the [Internal Revenue
Service] and the loan application with the bank, but
only at the direction of the customer, who ultimately
controls whether . . . Block takes either action with
respect to the third party. It is not dispositive, as the
trial court implied, that . . . Block’s customers do not
generally exercise control over the manner in which
. . . Block prepares the tax filings. . . . [Indeed,
Block’s] customers retain enough control over . . .
Block to support a finding of an agency relationship.’’ Id.
Similar to Green, if this court acknowledges that the
attorney-client relationship is a per se fiduciary relation-
ship, I would conclude that the facts in this case involv-
ing a tax preparer, who is familiar with a person’s
financial condition, are not so different as to warrant
summary judgment, effectively concluding that a jury
could never find on the facts of the present case that
a fiduciary relationship existed.
In addition, in Watts v. Jackson Hewitt Tax Service,
Inc., 579 F. Supp. 2d 334, 352 (E.D.N.Y. 2008), the United
States District Court for the Eastern District of New
York held, in a case involving allegations of deceptive
pricing practices, that the pleadings were sufficient for
the court to conclude that the defendants may have had
a duty to disclose more information, and their failure to
fulfill this duty may constitute actionable fraudulent
omission. The defendants had argued that, as a tax
preparer, they did not owe a fiduciary duty to the plain-
tiffs. Id. The court stated that such a duty can arise out
of any of three situations: namely, ‘‘(1) where a party
has made a partial or ambiguous statement as a party
cannot give only half of the truth; (2) where a party
has a fiduciary duty to another; or (3) where a party
has superior knowledge that is not available to the other
party and the party with superior knowledge knows
that the other party is acting on the basis of the mistaken
knowledge.’’ (Internal quotation marks omitted.) Id.
The United States District Court further explained that
‘‘[the] [d]efendants deny that they, as tax preparers,
owe a fiduciary duty to the plaintiffs. However, such a
duty can also arise under the first and third situations.
[The] [d]efendants are alleged to have made a partial
and ambiguous representation of their minimum fees
to customers. They had superior and exclusive knowl-
edge of the actual charges applied to each customer’s
[t]ax [p]reparation [f]ee, especially regarding the sea-
sonal multiplier fee. Without knowledge of the seasonal
multiplier and hidden fees for financial products, cus-
tomers can be expected to act on the misleading impres-
sions conveyed by the minimum fee fliers. The
pleadings are sufficient for the court to conclude that
[the] defendants may have owed a duty to disclose more
information, and their failure to fulfill this duty may
constitute actionable fraudulent omission.’’ Id.
As the foregoing cases from other jurisdictions dem-
onstrate, contrary to the representations in the majority
opinion, other jurisdictions that have considered this
issue have concluded that there may be sufficient evi-
dence adduced to hold a tax preparer to a fiduciary
responsibility in the absence of said tax preparer offer-
ing investment advice. On the basis of the consideration
of our case law and these out-of-state cases, I will now
analyze the facts of the present case in relationship to
the relevant authorities.
The uncontested affidavits in the present case estab-
lish several relevant facts. First, for seventeen years,
between the years 1989 and 2006, the plaintiff employed
the defendants to handle all of his tax work and to
formulate and file his tax returns. I note that the absence
of a long-term relationship was one of the reasons that
the court held that there was no fiduciary relationship
in Peterson v. H & R Block Tax Services, Inc., 971 F.
Supp. 1204, 1214 (N.D. Ill. 1997), which is cited by the
majority. I recognize the fact that the majority has cited
cases which suggest that a long-term relationship,
standing alone, cannot justify a finding of a fiduciary
relationship. The length of the relationship, however,
certainly can be a factor in any determination of a
fiduciary relationship. Second, the plaintiff had trust
and confidence in the defendants. We have often stated
that ‘‘[a] fiduciary or confidential relationship is charac-
terized by a unique degree of trust and confidence
between the parties . . . .’’ (Internal quotation marks
omitted.) Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, supra, 281 Conn. 108. Third, the plaintiff
had confidence in the defendants, and knew that, in
tax matters, their knowledge, skill and expertise was
superior to his own and he believed that the defendants
were proceeding in his best interests. ‘‘[There is] a
unique degree of trust and confidence between the par-
ties, one of whom has superior knowledge, skill or
expertise and is under a duty to represent the interests
of the other. . . . The superior position of the fiduciary
or dominant party affords him great opportunity for
abuse of the confidence reposed in him.’’ (Internal quo-
tation marks omitted.) Id.; see also Watts v. Jackson
Hewitt Tax Service, Inc., supra, 579 F. Supp. 2d 352
(emphasizing importance of superior knowledge in
establishing one element of fiduciary relationship).
Finally, Walsh concluded that based on the length of
the relationship, and nature and scope of the services
rendered by the defendants, that the defendants had a
fiduciary relationship with the plaintiff and a fiduciary
duty and responsibility, as the plaintiff’s tax advisors
and tax preparers, to disclose to him any decision on
their part to materially change his tax status for
reporting Florida real estate investment income.
The trial court found that ‘‘[t]aken in a light most
favorable to the plaintiff, the plaintiff has met his burden
with respect to the requirements of the second element
of the fraudulent concealment statute. The plaintiff
attests in his affidavit that he relied on the defendants
as tax experts with their superior knowledge and skill
when compared to his own knowledge in tax matters.
He also affirms that he trusted the defendants to prepare
his taxes for him for seventeen years from 1989 to 2006.
Walsh attests that, in his expert opinion, the defendants
owed a fiduciary duty to the plaintiff, and he further
states that a change in the plaintiff’s tax status was
a material fact that should have been disclosed. The
plaintiff has submitted sufficient evidence to establish
that the defendants had a fiduciary relationship with
the plaintiff and their failure to disclose his changed
status on the tax returns was a breach of their duty to
disclose material facts to the plaintiff.’’ The trial court
also found that the expert’s opinion would have been
helpful to the jury. The majority concludes that ‘‘the
trial court’s determination that the defendants owed
the plaintiff a fiduciary duty was a conclusion of law
not subject to deference on appeal.’’
To the contrary, I would conclude that the trial court
found enough predicate facts to establish that there
was a genuine issue of material fact regarding whether
a fiduciary relationship existed and that such an issue
demonstrates that summary judgment was not proper
in the present case.
It appears that the majority reaches its conclusion
on the basis that the defendants did not offer investment
advice to the plaintiff. It reasons that ‘‘[h]ad the plaintiff
adduced evidence, for example, of a disparity in bar-
gaining power, or that the defendants’ tax advice veered
into the investment realm—such that they recom-
mended financial transactions to him or managed his
investment funds—our view of the parties’ relationship
may well have been different. Under that alternative
scenario, a client’s special vulnerability would be more
readily apparent.’’ I respectfully disagree. In my view,
under the facts in this case, as established by the plain-
tiff’s affidavits, whether there was a fiduciary relation-
ship between the parties is a question of fact to be
determined by the trier of fact, in light of the totality
of the circumstances. The affidavits establish a prima
facie showing of a fiduciary relationship pursuant to
our case law.
The cases that I have cited herein, from both federal
courts and our sister states, suggest that plaintiffs do
not have to show that the tax preparer gave investment
advice in order to establish a prima facie case to survive
summary judgment. It is not the role of either the trial
court or the Appellate Court to substitute its version
of the facts for what is properly the role of the fact
finder. See Bayer v. Showmotion, Inc., 292 Conn. 381,
405 n.10, 973 A.2d 1229 (2009); see also Fleet Bank,
N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803,
cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994). Once
the predicate issue of material fact regarding the fidu-
ciary relationship was established, in my view, it was
unnecessary to consider the burden of proof, or lack
thereof, related to the fraudulent concealment.
In my view, despite acknowledging that ‘‘a flexible
approach determines the existence of a fiduciary duty,’’
the majority establishes a bright line rule to the effect
that a tax preparer can never be a fiduciary, unless
he also gives investment advice. I disagree with this
approach because it dismisses a court’s ability to con-
sider the fiduciary status based upon the totality of the
circumstances involved in each case. There would also
seem to be a tension between the majority’s bright line
approach and our jurisprudence that requires ‘‘[r]ather
than attempt to define a fiduciary relationship in precise
detail and in such a manner to exclude new situations,
we have instead chosen to leave the bars down for
situations in which there is a justifiable trust confided
on one side and a resulting . . . influence on the
other.’’ (Internal quotation marks omitted.) Dunham v.
Dunham, supra, 204 Conn. 320.
Therefore, I respectfully dissent.